Exhibit 10
PURCHASE AND ASSUMPTION AGREEMENT
This Purchase and Assumption Agreement (this "Agreement") dated as of
December 17, 1999 by and between South Branch Valley National Bank, a national
banking association having its principal place of business at 000 Xxxxx Xxxx
Xxxxxx, Xxxxxxxxxx, Xxxx Xxxxxxxx 00000 ("Seller") and Citizens National Bank of
Elkins, a national banking association, having its principal place of business
at 000 Xxxxx Xxxxxx, Xxxxxx, Xxxx Xxxxxxxx 00000 ("Buyer").
W I T N E S S E T H:
WHEREAS, Seller desires to sell certain assets and transfer certain
deposits and other liabilities of the branch office listed on Schedule A hereto
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(the "Branch"); and
WHEREAS, Buyer desires to purchase such assets and assume such
deposits and other liabilities, upon the terms and conditions provided in this
Agreement.
NOW, THEREFORE, in consideration of the representations, warranties,
mutual covenants and agreements contained in this Agreement, Buyer and Seller
hereby agree as follows:
ARTICLE I
DEFINITIONS
l.1. Certain Defined Terms.
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Some of the capitalized terms appearing in this Agreement are defined
below. The definition of a term expressed in the singular also applies to that
term as used in the plural in this Agreement and vice versa.
"Affiliate" means a Person that directly or indirectly, through one or
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more intermediaries, controls, is controlled by, or is under common control
with, a specified Person, except in those cases where the controlling Person
exercises control solely in a fiduciary capacity.
"Applicable Percentage" shall mean 3.25%.
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"Assets" has the meaning set forth in Section 2.1 of this Agreement.
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"Banking Day" means any day other than a Saturday, Sunday or other day
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on which Seller is closed.
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"Benefit Plans" includes, without limitation, any pension, profit-
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sharing, or other employee benefit, fringe benefit, severance or welfare plan
maintained by or with respect to which contributions are made by Seller or any
of Seller's Affiliates with respect to Seller's employees.
"Borrowers" means those persons who are borrowers or obligors under
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the Loans.
"Branch" means the branch office of Seller listed on Schedule A
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hereto.
"Cash on Hand" means the amount of all actual currency and coinage on
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hand at the Branch as of the close of business on the Closing Date.
"Closing" means the transfer of the Assets to Buyer and the assumption
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of the Liabilities by Buyer on the Closing Date.
"Closing Date" has the meaning set forth in Section 9.1 of this
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Agreement.
"Customers" means the Borrowers and the Depositors.
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"Depositors" means account holders having Deposits.
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"Deposits" means all deposits (as defined in 12 U.S.C. Section
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1813(1)) of Seller shown on the books and records of the Branch, including but
not limited to all interest posted thereon, accrued but unpaid interest and both
collected and uncollected funds (including overdrawn accounts), together with
Seller's rights and responsibilities under any customer agreement evidencing or
relating thereto, but excluding (i) deposits securing loans or other extensions
of credit by Seller where such loans or other extensions of credit are not being
transferred under this Agreement, (ii) deposits held in accounts for which
Seller acts as fiduciary (other than deposits held by Retirement Plans), (iii)
deposits subject to legal process, (iv) deposits which have been reported as
abandoned property under the abandoned property laws of any jurisdiction, (v)
deposits held in any Retirement Plan where the account holder has notified
Seller or Buyer of his, her or its objection to Buyer acting as custodian or
trustee of such Retirement Plan, (vi) deposits by Seller or its Affiliates;
(vii) deposits constituting official checks, travelers checks, money orders, or
certified checks of Seller and (viii) accounts designated as "closed" on the
books and records of Seller.
"Deposit Premium" shall mean the Applicable Percentage multiplied by
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the Deposits as of the Closing Date.
"Environmental Law" means, but is not limited to, all of the laws and
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implementing regulations of the United States Government, State of West
Virginia, and its local governments or agencies whether currently in existence
or hereinafter enacted that govern: (i) the existence, cleanup and/or remedy of
hazardous substance contamination or property, (ii) the protection of the
environment from released, spilled, deposited or otherwise emplaced hazardous
substance contamination, (iii) the control of hazardous substances and hazardous
waste, (iv) the reporting of releases, use, generation, transport, treatment and
removal of hazardous substances, (v) the protection and preservation of
sensitive lands, (e.g., wetlands), endangered species and historic sites, and
(vi) the control and regulation of underground storage tanks.
"ERISA Affiliate" means any entity that is considered one employer
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with Seller under Section 4001 of ERISA or Section 414 of the Internal Revenue
Code of 1986, as amended.
"FDIC" means the Federal Deposit Insurance Corporation.
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"Fixed Assets" means those furnishings, equipment, and fixtures and
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other personal property owned or leased by Seller (other than proprietary
signage and equipment), together with manufacturer's warranties thereon which
are assignable and in effect at Closing, which are used or located at the Branch
and are described in the attached Schedule B.
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"Hazardous Substance" means, without limitation, any substance which
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at any time is toxic, ignitable, reactive or corrosive and is regulated by any
Environmental Law or is detrimental to the environment or health of living
organisms. "Hazardous Substance" includes any and all material or substance
that is defined as "Hazardous Waste," "Extremely Hazardous Waste" or a
"Hazardous Substance" pursuant to any Environmental Law. "Hazardous Substance,"
includes but is not restricted to asbestos, polychlorinated biphenyls ("PCBs"),
radon, nuclear materials, petroleum and petroleum products and products
processed with formaldehyde.
"Liabilities" has the meaning set forth in Section 2.5 of this
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Agreement.
"Loans" means all extensions of credit of, and agreements to extend
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credit by, Seller associated with the Branch, but excluding all loans secured by
residential real estate having a fixed interest rate throughout their term, as
identified in Schedule C hereto, including the accrued interest thereon,
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collateral security, guarantees, security interests and other property or
contract rights securing repayment of the obligations, as well as all
agreements, correspondence and other documentation relating to the loans
transferred hereunder.
"Loan Purchase Price" means the aggregate outstanding principal
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balance (including credit balances resulting from overpayment) and all accrued
and unpaid interest and accrued but unpaid credit protection insurance premiums
of all Loans at the time of the Closing (not including the unfunded portion of
all outstanding lines of credit or loan commitments) less prepaid interest
thereon at the time of the Closing.
"Mediator" means the firm of Xxxxxxxxxxx & Company, or if such firm
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shall decline to perform the function of the Mediator specified in Section 12.5
thereof, then such other certified public accounting firm as shall be mutually
agreeable to Seller and Buyer.
"Person" means any association, corporation, individual, partnership,
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trust, limited liability company or any other entity or organization.
"Operation and Maintenance Contracts" means the contracts listed on
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Schedule D hereto which relate to the operation and maintenance of certain of
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the Fixed Assets and the Real Property.
"Real Property" means real property more particularly described on
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Schedule E, together with the structures located thereon.
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"Retirement Plans" means those non-discretionary individual retirement
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accounts and qualified retirement plan accounts relating to the Deposits for
which Seller acts as custodian or trustee but which are not administered by
Seller's trust department.
"Transferred Employees" shall have the meaning set forth in Section
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8.1 of this Agreement.
1.2. Accounting Terms.
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To the extent that any accounting terms used in this Agreement are not
defined in Section 1.1 or elsewhere herein, they shall be defined according to
generally accepted accounting principles.
ARTICLE II
TRANSFER OF ASSETS AND ASSUMPTION OF LIABILITIES
2.1. Transfer of Assets.
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At the Closing, subject to the satisfaction or waiver of the
conditions set forth in Sections 9.3 and 9.4 hereof, Seller shall sell, convey,
assign and transfer to Buyer, and Buyer shall purchase from Seller, without
recourse against Seller except as provided in this Agreement, all of Seller's
right, title, and interest in and to the following assets (referred to herein
collectively as the "Assets"):
(a) the Loans;
(b) the Fixed Assets;
(c) the Real Property;
(d) the Cash on Hand;
(e) Seller's rights under the Operation and Maintenance Contracts;
and
(f) the Records (as defined in Section 2.2 hereof).
THE ASSETS ARE TRANSFERRED WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES (INCLUDING
THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR USE)
EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY REPRESENTED BY SELLER IN THIS
AGREEMENT. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NO COMPUTER
SOFTWARE OF ANY TYPE SHALL BE TRANSFERRED AS PART OF THE ASSETS.
2.2. Buyer's "Due Diligence" With Respect to the Loans.
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Although Seller is not specifically aware of any incomplete loan
files, the Buyer acknowledges that some of the files maintained by Seller with
respect to the Loans may be incomplete. Buyer will be given the opportunity for
a period of 30 days following the execution hereof to examine each of the files
maintained by Seller in connection with the Loans to determine if such files are
sufficiently complete to permit Buyer to include such Loans in the transfer of
Assets contemplated by this agreement ("Buyer Due Diligence"). Provided Buyer
gives Seller written notice within seven business days after completion of the
Buyer Due Diligence listing those Loans that Buyer has decided to reject, such
rejected Loans shall not be a part of the Assets transferred hereunder. To the
extent that the Buyer shall choose to accept transfer of the Loans, such
transfer shall be "as is" with respect to the Loan documentation included in
such files and Seller shall have no obligation to Buyer whether by indemnity or
otherwise with respect to any documents which are missing from or not otherwise
included in the Loan files.
In addition to the foregoing, Buyer shall have the opportunity to
examine Loans on the Closing
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Date to determine if any Loan is more than sixty (60) days past due as of the
Closing Date. If any Loan is more than sixty (60) days past due as of the
Closing Date, Buyer may reject such Loans and such rejected Loans shall not be
part of the Assets transferred hereunder.
2.3. Additional Due Diligence By Buyer.
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In addition to the Buyer Due Diligence, the Buyer will be given the
opportunity to conduct such reasonable investigations and inspections of the
other Assets being transferred including the Real Property as Buyer may deem
appropriate. Except for representations made by Seller under Article 4, all
such Assets shall be transferred without representation or warranty by Seller,
express or implied (including implied warranties of merchantability or fitness
for any particular use).
2.4. Transfer of Records.
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(a) Seller will deliver to Buyer at the Closing (i) all records and
files that are in Seller's possession (whether in electronic image or paper
form) that can be transferred to Buyer without undue expense, relating to the
Loans, the Deposits, and the other Assets to be assumed or purchased by Buyer,
including but not limited to, signature cards and any pending stop payment order
instructions in Seller's possession; and (ii) all maintenance records in
Seller's possession of repairs of and warranties relating to the Fixed Assets
and the Branch, (collectively referred to as the "Records"). Buyer acknowledges
that any of the Records provided may not be originals but may be copies
retrieved from Seller's electronic records system, but Seller shall provide
originals of the Notes relating to the Loans and any other document, paper or
writing for which the original is necessary for enforcement of any rights
relating thereto or to any Assets transferred hereunder.
(b) Any books and records relating to the Assets or the Liabilities
(including historical information on the Loans and the Deposits) held by either
Seller or Buyer after the Closing shall be maintained in accordance with and for
the period provided in that party's standard record keeping policies and
procedures and shall be available for inspection and copying by the other party
at the other party's expense during regular business hours upon reasonable
notice; provided, however, that, notwithstanding the foregoing, in the case of
disputes between the parties relating to this Agreement the parties agree to
follow and be bound by the procedures set forth in Section 12.5.
2.5. Assumption of Liabilities.
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(a) At the Closing, subject to the satisfaction or waiver of the
conditions set forth in Sections 9.3 and 9.4, Buyer shall assume, without
recourse against Seller except as provided in this Agreement, the following, and
only the following, liabilities of Seller (referred to herein collectively as
the "Liabilities") as at the close of business on the Closing Date:
(i) the Deposits (including overdrawn accounts);
(ii) Seller's duties, obligations and responsibilities under
the Operation and Maintenance Contracts;
(iii) Seller's duties, obligations and responsibilities with
respect to the Retirement Plans, except for those Retirement Plans not included
in the Deposits.
(b) Except for those liabilities expressly assumed by Buyer pursuant
to this Section 2.5, Buyer is not assuming any other liabilities or obligations.
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2.6. Sales, Use and Transfer Taxes.
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Buyer shall pay any sales, use and recordation taxes which are payable
or arise as a result of the consummation of the transactions contemplated by
this Agreement, regardless of whether those taxes are imposed upon Buyer or
Seller. Seller shall pay real property transfer taxes. The parties shall
cooperate in preparing and filing any real property transfer tax forms which may
be required to be filed.
2.7. Proration of Certain Expenses.
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All wages and salaries of the Transferred Employees (as defined in
Section 8.1(a) hereof), all rents, real estate taxes, personal property taxes,
utility payments, the most recent semi-annual assessment payable to the FDIC
relating to the Deposits, any social security and unemployment taxes and any
workers' compensation payments relating to the Transferred Employees shall be
prorated between the parties as of the Closing Date. To the extent that any such
item has been prepaid by Seller for a period extending beyond the Closing Date,
Buyer shall pay Seller a proportionate amount of such item for such period; and
to the extent that any such item has been deferred by Seller to a time extending
beyond the Closing Date, Seller shall pay Buyer a proportionate amount of such
item allocated for the period prior to the Closing Date. Within thirty (30)
calendar days after the Closing Date, Seller shall provide Buyer with a
statement, together with supporting documentation and certified by an authorized
officer of Seller, calculating the amounts due Seller or Buyer, as the case may
be, under this Section 2.7. The parties shall use their reasonable best efforts
to agree upon the amounts in such statement promptly. Prior to 2:00 p.m.
(Eastern Time) on the third Banking Day following the date that Buyer notifies
Seller that it agrees with the amounts set forth in such statement, Buyer shall
pay to Seller, or Seller shall pay to Buyer, as appropriate, in immediately
available funds to an account designated in writing by such party at least two
Banking Days prior to the date of such payment, the amount calculated under this
Section as being due to such party.
2.8. Notice to Customers.
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Prior to the Closing, Seller may, at its sole cost and expense, notify
the Customers that, subject to the conditions to Closing, Buyer will be
purchasing the Loans and assuming the Deposits. Within thirty (30) calendar days
prior to the Closing Date, Buyer shall, at its sole cost and expense, notify the
Customers that, subject to the conditions to Closing, Buyer will be purchasing
the Loans and assuming the Deposits. Buyer's notification letter shall also set
forth the details of Buyer's administration of the Loans to be purchased and the
Deposits to be assumed. Seller shall provide Buyer with a list of Customers to
whom such notice shall be sent. Each party shall consult with the other as to
the substance of its notification letter and shall furnish a copy of such letter
to the other prior to sending it. Persons who become Customers subsequent to
such notifications and prior to the Closing shall be given a copy of Buyer's
notification letter and Seller's notification brochure at the time they become
Customers. Seller shall post a notice at the Branch at least thirty (30)
calendar days prior to the Closing to the effect that any Deposits or Loans not
assumed by Buyer shall be transferred to another of Seller's branches.
2.9 Conversion.
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Seller and Buyer shall cooperate with each other and shall use their
reasonable best efforts (as consistent with their internal day-to-day
operations) in order to cause the timely transfer of information concerning the
Deposits and the Loans which is maintained on Seller's data processing systems
(the "Conversion"). Within fifteen (15) Banking Days after the date of this
Agreement, Seller and Buyer shall each designate an appropriate officer or
officers to be responsible for the necessary cooperation of the parties and to
act as an initial contact for responding to questions and requests for
information. The parties acknowledge that
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the goal of such cooperation is to enable Buyer to obtain and confirm data prior
to the Closing Date so that such back office conversion is completed and Buyer
is processing all data relating to the operations of the Branches on the Banking
Day after the Closing Date.
2.10. Demand Deposit Account Owners and Borrowers.
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Not less than five (5) nor more than thirty (30) Banking Days prior
to Closing, Buyer shall notify all Depositors and all Borrowers with the ability
to access their Deposits or Loans that, after the Closing Date, access to such
Deposits or Loans through the Seller will not be honored after a certain date to
be agreed upon by Seller and Buyer, but no later than sixty (60) days from
closing or conversion. Such notice may be included in the notification letter
sent by Buyer to the Depositors pursuant to Section 2.8.
2.11. Seller Collecting Duties.
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For a period not to exceed 90 calendar days after the Closing Date,
Seller agrees to act as Buyer's collecting bank for the receipt of drafts,
checks, negotiable orders of withdrawal and electronic fund transfers drawn
before or after the Closing on forms provided by Seller on any accounts of
Deposits assumed, home equity lines of credit or any other loan account
accessible by check or draft purchased by, Buyer hereunder. Seller agrees in
this regard that it shall:
(a) maintain a mechanism to receive such items on a daily basis;
(b) provide a daily listing of all such items received by it by
12:00 noon on the following Banking Day to Buyer, in such form as shall be
agreed to by Buyer and Seller; and
(c) make available for pickup by Buyer no earlier than 3:00 p.m.
(Eastern Time) at a location to be designated by Seller, all physical items
received by Seller the following Banking Day by such means as agreed to by the
parties.
Buyer and Seller agree that any reasonable courier or telephone costs associated
with paragraphs (b) and (c) shall be borne by Buyer. Seller further agrees that
it shall notify Buyer of any information received regarding the settlement and
clearance of any domestic or foreign checks, savings bonds or coupons deposited
with it prior to the Closing Date. In executing its duties under this Section
2.11, Seller is acting only as agent for the collection of items drawn on Buyer.
Seller shall not supply any missing endorsements, or act as collecting bank for
returned deposits, or, except as provided in Section 2.13 hereof, act as
returning bank for any items not paid by Buyer. Unless caused by the gross
negligence or willful or intentional misconduct of Seller, any risks of loss
associated with the interim servicing, including any risk of loss associated
with insufficient funds, shall be the responsibility of Buyer.
2.12. Buyer Processing Obligations.
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During the period set out in Section 2.11, Buyer agrees to honor and
pay all properly payable drafts, checks, negotiable orders of withdrawal or
electronic fund transfers delivered to it by Seller pursuant to Section 2.11,
provided the same are not stale, are not the subject of stop payment orders, or
are not drawn on insufficient funds.
2.13. Return of Items During Processing Period.
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(a) Buyer further agrees to be solely responsible for the return of
any drafts, checks,
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negotiable orders of withdrawal or electronic fund transfers delivered by Seller
to Buyer pursuant to Section 2.11 and return of any federal recurring payments
or ACH transactions processed pursuant to Section 2.11.
(b) Seller agrees to notify Buyer of the return to it of any items
deposited in, or cashed at, the Branch prior to the Closing Date and shall
expeditiously forward any such items to Buyer. If Buyer cannot recover on the
items referred to in this subsection (b) after making a good faith effort to do
so, Seller shall reimburse Buyer for such return items upon assignment of such
items by Buyer to Seller.
2.14. Payment.
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In settlement of the transactions described in Section 2.11 and
Section 2.12, Buyer and Seller agree that Seller shall provide Buyer with a
daily net settlement figure for all such transactions from the immediately
preceding Calendar Day by 12:00 noon Eastern Time on each banking Day and that
the party obligated to remit any funds thereunder shall do so in immediately
available funds by wire transfer by 2:00 p.m. Eastern Time on such day; any such
settlement shall be provisional pending receipt by Buyer of the physical items
relating to such settlement; Buyer shall adjust the next daily settlement to
reflect any adjustments resulting from its receipt and examination of the
physical items. Adjustments by Buyer pursuant to the immediately preceding
sentence shall be limited to adjustments to correct errors made by Seller in the
calculation of the amounts represented by the transactions received by it on
Buyer's behalf, and no adjustments shall be made for the effect of any improper
or missing signatures or endorsements, alterations, stale dates or other
irregularities with regard to a transaction or as a consequence of fraud,
insufficient funds, closed account or any other reason, except as provided in
Section 2.11 hereof.
2.15. Post-Closing Deposits.
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Seller agrees that it will transfer, convey, and assign to Buyer
without recourse all deposits received by Seller after the Closing for credit to
any of the Deposits, and all payments received by Seller after the Closing for
application to or on account of any of the Assets, but Seller shall be under no
duty to accept any such deposit or payment.
2.16. Deposit Histories.
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In case of any dispute with or inquiry by an account holder whose
Deposit is subject to this Agreement, which dispute or inquiry relates to the
servicing of such Deposit prior to the date for which a Deposit history has been
provided to Buyer, Seller will make a good faith effort to provide Buyer with
the appropriate information regarding the Deposit and copies of pertinent
documents or instruments with respect to such dispute or inquiry so as to permit
Buyer to respond to the account holder within a period of time and in a manner
which would comply with standard banking practices and customs. Seller shall
provide such information to Buyer at no charge for the first 90 calendar days
after Closing, and thereafter may charge Buyer standard industry rates for such
information.
2.17. Interest Reporting.
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With respect to the reporting requirements of federal and state tax
laws, Seller shall report through the Closing Date, and Buyer shall report from
the day after the Closing Date through the end of the calendar year, all
interest credited to, interest withheld from and early withdrawal penalties
charged to Deposits assumed by Buyer pursuant to this Agreement and all interest
paid on Loans purchased by Buyer pursuant to this Agreement. Such reports shall
be made to the Customers to whose accounts such reports relate and to the
applicable federal and state tax and/or regulatory authorities.
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2.18. Stop Payment Items.
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Buyer shall honor all stop payment orders relating to the Deposits or
the Loans initiated prior to the Closing and reflected in stop payment documents
delivered to Buyer on the Closing Date or immediately thereafter. If following
receipt of appropriate stop order documentation, Buyer makes any payment in
violation of any such order, Buyer shall be solely liable for any such payment
and shall indemnify, hold harmless and defend Seller from and against all
claims, losses and liabilities, including reasonable attorneys' fees and
expenses, arising out of any such payment. In the event that Buyer shall make
any payment in violation of a stop payment order initiated prior to the Closing
but not reflected in stop payment documents delivered to Buyer prior to such
payment, Seller shall indemnify, hold harmless and defend Buyer from and against
all claims, losses and liabilities, including reasonable attorneys' fees and
expenses, arising out of any such payment. Buyer's and Seller's indemnification
obligations under this Section 2.18 shall not be subject to the limitations set
forth in Section 10.4 hereof.
2.19. Payments on Loans.
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During the period set out in Section 2.11, Seller shall remit promptly to
Buyer all payments on Loans which may be received by Seller after the Closing.
If the balance due on any Loan has been reduced by Seller as a result of a
payment by check or other instrument received prior to the Closing, and if such
instrument is returned to Seller after the Closing as uncollectible, an amount
in cash equal to such reduction shall be paid by Buyer to Seller promptly upon
demand, and Seller shall assign promptly all rights, title and interest in such
uncollectible item to Buyer.
2.20. Possession and Risk of Loss.
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From and after the Closing, Buyer shall be entitled to possession of
the Assets and the Liabilities, and all risk of loss with respect thereto shall
pass to Buyer as of the Closing.
ARTICLE III
PURCHASE PRICE
3.1. Amount of Purchase Price.
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(a) In consideration of the transfer of the Assets and the
Liabilities provided for in Sections 2.1 and 2.5 hereof, respectively, Buyer
shall pay to Seller the sum of the following:
(i) the Loan Purchase Price;
(ii) the Deposit Premium;
(iii) the unamortized portion of prepaid expenses associated
with any of the Assets sold;
(iv) the net book value of the Fixed Assets and Real Property
as shown on Seller's records as of the last calendar day
of the month immediately preceding the month in which the
Closing occurs; and
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(v) the total of Cash on Hand and cash items held by Seller as
of the date of Closing.
The items set forth in (i) through (v) are hereinafter sometimes
collectively referred to as the "Purchase Price".
(b) Buyer shall pay Seller the Purchase Price by deducting the
Purchase Price from the Deposit Amount payable by Seller to Buyer, as provided
for in Section 3.2.
3.2. Payment by Seller.
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In consideration of Buyer's assumption of the Liabilities, Seller
shall pay to Buyer an amount equal to the principal amount of the Deposits, plus
accrued interest, as at the close of business on the Closing Date (the "Deposit
Amount"), less the Purchase Price (such calculated amount, the "Payment
Amount").
3.3. Settlement.
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(a) Not less than three (3) Banking Days prior to the Closing Date,
Seller shall deliver to Buyer a proposed Preliminary Closing Statement, which
shall set forth the basis for calculating a preliminary Payment Amount completed
as of the close of business five (5) Banking Days prior to the Closing Date,
together with supporting documentation reasonably satisfactory to Buyer, and
which shall be certified by an authorized officer of Seller. Such Preliminary
Closing Statement shall be the basis of a preliminary payment to be made to
Buyer's account on the Closing Date (the "Preliminary Payment").
(b) Within fifteen (15) calendar days after the Closing Date (or on a
different date agreed upon by the parties), Seller shall provide Buyer with a
proposed Final Closing Statement, which shall set forth the basis for
calculating the final Payment Amount completed as of the close of business on
the Closing Date, together with supporting documentation reasonably satisfactory
to Buyer, certified by an authorized officer of Seller. The parties shall use
their best efforts to agree upon the Final Closing Statement promptly. Prior to
2:00 p.m. (Eastern Time) on the third Banking Day following the date that Buyer
agrees to the Final Closing Statement or the date that Seller is notified of any
determination of the Final Closing Statement under Subsection (d), Seller shall
pay to Buyer (or Buyer shall pay to Seller, as the case may be) an amount equal
to the amount due stated on the Final Closing Statement (the "Adjustment
Payment"), plus interest from the day after the Closing Date until the calendar
day before the Adjustment Payment is made at a rate per annum (calculated daily
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base on a 360-day year) equal to the Federal Home Loan Bank of Pittsburgh's
overnight RepoPlus Advance rate, as announced on the Closing Date.
(c) Both the Preliminary Payment and the Adjustment Payment shall be
made by wire transfer of immediately available funds to the account of the party
receiving the payment, which account shall be designated in writing by such
party at least two Banking Days prior to the date of such payment.
(d) If the parties are unable to agree on a Final Closing Statement
within thirty (30) calendar days after the Closing, or within ten (10) Banking
Days after Buyer's receipt of the proposed Final Closing Statement, whichever is
later, then either party may submit the matter to the Mediator, who shall
finally determine all disputed portions of the Final Closing Statement in
accordance with the terms and conditions of this Agreement within thirty (30)
calendar days after the submission. Each party agrees to accept the decision of
the Mediator as final and shall pay one-half of the fees and expenses of the
Mediator. The Final Closing Statement, as agreed upon by the parties and/or
determined under this subsection (d), shall be final and binding upon the
parties.
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3.4. Allocation of Consideration.
---------------------------
Buyer and Seller agree to use their reasonable best efforts to agree
on an appropriate allocation of the Purchase Price before the Closing Date.
Seller and Buyer shall each report the transfer of the Assets and the assumption
of the Liabilities for tax purposes in accordance with such allocation. Seller
and Buyer each agree to complete Federal Form 8594, "Acquisition Statement Under
Section 1060" ("Form 8594"), consistent with this allocation of consideration.
Notwithstanding the foregoing, either party may change any such report in the
event of a dispute with any taxing authority or take any other step to settle or
resolve such a dispute.
ARTICLE IV
SELLER'S REPRESENTATIONS AND WARRANTIES
Seller makes the following representations and warranties to Buyer as
of the date of this Agreement and as of the Closing.
4.1. Power and Authority.
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(a) Seller is a national banking association duly organized, validly
existing and in good standing under the laws of the United States of America and
has the full power and authority to enter into and perform this Agreement.
(b) Upon the approval of this Agreement by Seller's Board of
Directors or an authorized committee thereof, the execution and delivery of this
Agreement by Seller will have been duly authorized by all necessary corporate
action by Seller and this Agreement will be the legal, valid and binding
obligation of Seller, enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
conservatorship, receivership, moratorium or other laws affecting creditors'
rights generally and a court's right under general principles of equity to
refuse to direct specific performance.
(c) Neither the execution of this Agreement nor the consummation of
the transactions contemplated hereby will result in (i) a violation of Seller's
charter or bylaws, (ii) a breach of or constitute a default under any material
contract, agreement or other instrument to which it is a party or by which it is
bound or (iii) a violation of any outstanding judgment, order, injunction, law,
rule or regulation to which it is subject, excluding from the foregoing clauses
(ii) and (iii) breaches, defaults or violations which, either individually or in
the aggregate, would have a material adverse effect on the Assets and the
Liabilities or impede Seller's ability to perform its obligations hereunder.
4.2. Litigation and Regulatory Proceedings.
-------------------------------------
Except as disclosed in Schedule 4.2 hereof, there are no actions
------------
pending against Seller which alone, or taken in the aggregate, reasonably would
be expected to have any material adverse effect upon the Assets, the Liabilities
or the consummation of the transactions contemplated by this Agreement. No
governmental agency has notified Seller that it would oppose or not approve or
consent to the transactions contemplated by this Agreement.
81
4.3. Consents and Approvals.
----------------------
Except as disclosed in Schedule 4.3, no consents or approvals of, or
------------
filings or registrations with, any third party or any public body, agency, or
authority are necessary in connection with Seller's consummation of the
transactions contemplated by this Agreement.
4.4. No Broker's or Finder's Fees.
----------------------------
No agent, broker, investment banker, person or firm acting on behalf
of or under authority of Seller or any of its Affiliates is or will be entitled
to any broker's or finder's fee or any other commission or similar fee, directly
or indirectly, in connection with any of the transactions contemplated herein.
4.5. Title to Real Property.
----------------------
Except as set forth in Schedule 4.5 hereto and subject to statutory
------------
liens securing payments not yet due or which are being contested by Seller in
good faith and zoning restrictions, easements, licenses, covenants and other
restrictions affecting the use of the Real Property and such other imperfections
and irregularities of title, claims, liens, charges, security interests or
encumbrances which do not materially affect the use or value of the Real
Property, Seller has good and marketable title to the Real Property, free and
clear of all liens and encumbrances
4.6. Title to Fixed Assets.
---------------------
Except as specified in Schedule 4.6 hereto and except for liens for
------------
current taxes or assessments which are not yet due and payable or are being
contested by Seller in good faith and statutory and other similar liens which
are not yet due and payable and which do not materially affect the value of or
interfere with the use of the Fixed Assets, Seller is the lawful owner of and
has good and marketable title to the Fixed Assets, free and clear of any
mortgage, pledge, lien, security instrument, conditional sales agreement, lease
or encumbrances.
4.7. Deposit Insurance.
-----------------
The Deposits are insured by the FDIC up to the maximum extent
permitted by law. Seller has filed all reports and paid all premiums required
under the Federal Deposit Insurance Act, as amended, with respect to the
Deposits.
4.8. Withholding.
-----------
Seller has timely complied, and will continue to timely comply
through the Closing, in all material respects with the requirement of Section
3406 of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder.
82
4.9. Loans.
-----
Subject to the limitations set out in Section 2.2 hereof, each Loan
being purchased by Buyer is a valid loan in conformity with applicable laws and
regulations; its principal balance as shown on Seller's books and records is
true and correct as of the last date shown thereon; to the knowledge of Seller,
all purported signatures on and executions of any documents in connection with
such Loan are genuine. No such Loan is subject to any asserted defense, offer
or counterclaim. Subject to the limitations of Section 2.2 hereof, Seller shall
provide microfilm or comparable copies of any documents relating to Loans in
Seller's possession to Buyer upon request.
4.10 Deposit Liabilities.
-------------------
All Deposit accounts have been administered by Seller to date, and
will continue to be administered by Seller to the Closing date, in material
compliance with applicable law and regulation.
4.11 Compliance with Laws.
--------------------
Seller holds all material permits, licenses, certificates of
authority, orders and approvals of, and has made all material filings,
applications and registrations with, all governmental or regulatory bodies that
are required in order to permit it to carry on the business of the Branch as it
is presently conducted. Seller has conducted the Branch's business so as to
comply in all material respects with all applicable statutes, regulations, rules
and orders.
4.12 Restraints on Closing.
---------------------
Seller is not aware of any reason that Buyer will be unable to obtain
the regulatory approvals required as a condition to consummation of the
transactions contemplated herein, other than the possibility of an adverse
determination upon the anti-competitive effects of the proposed transactions.
4.13 Contracts, Leases and Other Agreements.
--------------------------------------
Seller has provided Buyer, or will provide Buyer in connection with
Buyer's due diligence, with true and accurate copies of all material leases,
agreements, arrangements, deeds and other relevant material documents relating
to the Assets that are in Seller's possession.
4.14 Taxes.
-----
(a) Seller has timely filed all federal, state and local (and, if
applicable, foreign) tax returns required by applicable law to be filed by it
(including, without limitation, estimated tax returns, income tax returns,
information returns and withholdings and employment tax returns) and has paid,
or where payment is not required to have been made, in accordance with generally
accepted accounting principles, have set up an adequate reserve or accrual for
the payment of, all taxes and penalties, if any, required to be paid in respect
of the periods covered by such returns.
(b) All federal, state and local (and, if applicable, foreign) tax
returns filed by Seller are complete and accurate in all material respects.
Seller is not delinquent in the payment of any tax, assessment or governmental
charge, and has not requested any extension of time within which to file any tax
returns in respect of any fiscal year or portion thereof which have not since
been filed. No deficiencies for any tax, assessment or governmental charge have
been proposed, asserted or assessed (tentatively or otherwise) against Seller
which
83
have not been settled and paid. There are currently no agreements in effect to
extend the period of limitations for the assessments or collection of any tax.
4.15 Environmental Matters.
---------------------
(a) Seller has not contaminated the Real Estate with any
Hazardous Substances as of the date of this Agreement, and to Seller's
knowledge, Seller has not permitted any Hazardous Substance to be brought upon,
kept or used in, or about the Real Estate. Seller has operated the Real Estate
in accordance with Environmental Laws. Except for the underground storage tanks
formerly located on the property, which are addressed in the letter from the
West Virginia Department of Environmental Protection dated April 5, 1999, a copy
of which is included at Schedule 4.15(a) ("DEP Letter"), Seller is not aware of
----------------
any issues relating to the Real Property under Environmental Laws. To Seller's
knowledge, the DEP Letter is current and has not been revised, amended or
rescinded.
(b) There are no pending or threatened claims, actions,
investigations, notices of non-compliance, information requests or notices of
potential responsibility or proceedings involving Seller relating to and there
is no reasonable basis for the assertion of any claims, actions,
investigations, notices or proceedings with respect to:
(1) an asserted liability of under any Environmental
authority, settlement, Environmental Law; Seller or any
prior owner, Law or the terms and agreement, decree or
occupier or user of the real conditions of any permit,
other obligation estate license, arising under any
(2) the handling, storage, use, Substances; transportation,
removal or disposal of Hazardous
(3) the actual or threatened from on or under or ground
water, land discharge, release or within any such
property surface or subsurface emission of Hazardous
into the air, water, strata; or Substances surface
water,
(4) personal injuries or damage Hazardous Substances. to
property related to or arising out of exposure to
ARTICLE V
BUYER'S REPRESENTATIONS AND WARRANTIES
Buyer makes the following representations and warranties to Seller as
of the date of this Agreement and as of the Closing Date:
5.1. Power and Authority.
-------------------
(a) Buyer is a national banking association duly organized, validly
existing and in good standing under the laws of the United States of America,
and has the full power and authority to enter into and perform this Agreement.
(b) The execution and delivery of this Agreement by Buyer has been
duly authorized by all necessary corporate action by Buyer, and this Agreement
is the legal, valid and binding obligation of Buyer,
84
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, conservatorship,
receivership, moratorium or other laws affecting creditors' rights generally and
a court's right under general principles of equity to refuse to direct specific
performance.
(c) Neither the execution of this Agreement nor the consummation of
the transactions contemplated hereby will result in a violation of Buyer's
charter or bylaws, or result in a breach of or constitute a default under any
material contract, agreement or other instrument to which it is a party or by
which it is bound and will not violate any outstanding judgment, order,
injunction, law, rule or regulation to which it is subject.
5.2. Litigation and Regulatory Proceedings.
-------------------------------------
There are no actions pending or, to Buyer's knowledge, threatened
against Buyer which alone, or taken in the aggregate, reasonably would be
expected to have any material adverse effect upon the consummation of the
transactions contemplated by this Agreement. No governmental agency has notified
Buyer that it would oppose or not approve or consent to the transactions
contemplated by this Agreement.
5.3. Consents and Approvals.
----------------------
Except for the regulatory approvals described in Section 9.3(a) of
this Agreement, no consents or approvals, or filings or registrations with any
third party or any public body, agency, or authority are necessary in connection
with Buyer's consummation of the transactions contemplated by this Agreement.
5.4. Deposit Insurance.
-----------------
Buyer's deposits (as defined in 12 U.S.C. Section 1813(1)) are
insured by the FDIC up to the maximum extent permitted by law. Buyer has filed
all reports and paid all premiums required under the Federal Deposit Insurance
Act, as amended.
5.5. No Broker's or Finder's Fees.
----------------------------
No agent, broker, investment banker, person or firm acting on behalf
of or under authority of Buyer or any of its Affiliates is or will be entitled
to any broker's or finder's fee or any other commission or similar fee, directly
or indirectly, in connection with any of the transactions contemplated herein.
ARTICLE VI
ADDITIONAL AGREEMENTS OF SELLER
6.1. Access to Seller's Premises Records, Personnel.
----------------------------------------------
Upon execution of this Agreement, Seller shall give Buyer and its
representatives and counsel, upon reasonable advance notice, reasonable access
during normal business hours, unless otherwise expressly consented to by Seller,
to the Branch, the Records and appropriate personnel of Seller. Seller shall
not be required to provide access to or to disclose information where such
access or disclosure would unduly disrupt the operation of the Branch, violate
or prejudice the rights of any customer or employee of Seller or be contrary to
law or any legal or regulatory order or process.
85
6.2. Regulatory Approvals.
--------------------
Seller shall reasonably cooperate with Buyer in obtaining any
regulatory approval which Buyer must obtain prior to the Closing.
6.3. Conduct of Business.
-------------------
Except as provided in this Agreement and as may be agreed upon
otherwise with Buyer and except as may be required by applicable law or industry
wide practice, Seller shall continue to carry on the business of banking at the
Branch and offer interest rates, or charge fees only as permitted under
contracts and agreements (as applicable) with customers of the Branch and
otherwise as is consistent with its normal operating procedures in the State of
West Virginia. Subject to the foregoing, Seller shall use its reasonable efforts
to maintain its customer relationships, except for any pricing policies not
targeted at the Branch. Between the date hereof and the Closing, Seller shall
not, without the prior consent of Buyer:
(a) acquire or dispose of any Fixed Assets, other than pursuant to
commitments made on or before the date of this Agreement and except for
replacement of furniture, furnishings and equipment and normal maintenance and
refurbishing in the ordinary course of business of the Branches; or
(b) increase or agree to increase the salary, remuneration or
compensation of persons employed at the Branch other than in accordance with
Seller's customary policies and/or bank-wide changes consistent with past
practices, or pay or agree to pay any uncommitted bonus to any such employees
other than regular bonuses granted based on historical practice.
6.4. Retirement Plan Accounts.
------------------------
Seller shall notify each of its customers holding Deposits under a
Retirement Plan account in a timely fashion of the proposed assumption of their
Retirement Plan accounts by Buyer, as contemplated by the plan documents.
6.5. Maintenance and Insurance.
-------------------------
Seller shall maintain the Real Property and the Fixed Assets in
customary repair, order and condition, reasonable wear and tear and damage by
fire or other unavoidable casualty excepted. Until the effectiveness of the
Closing, Seller shall maintain insurance on the Real Property and the Fixed
Assets in an amount sufficient to cover the replacement cost thereof.
6.6. Confidentiality.
---------------
Seller shall, and shall cause its Affiliates, directors, officers,
employees, and agents to, take all reasonable and appropriate steps to keep
confidential all information obtained or furnished to any of them with respect
to Buyer and its business, operations, and financial condition, and any
information maintained by Seller with respect to the Branch and/or to operations
at the Branch; provided, however, that any such information may be disclosed by
Seller to the extent required by law, as determined in a written opinion of
counsel to Seller (which counsel may be an employee of Seller). In the event
such disclosure is required, Seller shall provide Buyer written notice of the
information to be disclosed, together with a copy of the written opinion
referred to in the immediately preceding sentence, as far in advance of such
disclosure as is practicable. At Buyer's request, Seller will use its best
efforts to obtain assurances that confidential treatment will be afforded to
such information and will disclose only such information as is necessary to
comply with its legal obligations as
86
advised in such written opinion. Seller acknowledges that Buyer will suffer
irreparable harm as a result of a breach of this Section and that, therefore,
Buyer will be entitled to injunctive and other appropriate equitable relief in
addition to damages as a result of a breach or imminent breach of this Section.
Seller's obligations under this Section 6.6 shall survive both the termination
of this Agreement and the Closing.
ARTICLE VII
ADDITIONAL AGREEMENTS OF BUYER
7.1. Solicitation of Seller's Customers and Employees.
------------------------------------------------
Buyer shall not specifically solicit business from any customer of
the Branch or solicit for employment any employee of the Branch prior to the
Closing where such customer or employee becomes known to Buyer as a result of
the transactions contemplated by this Agreement, including without limitation
the Buyer Due Diligence; provided, however, these restrictions shall not
restrict general mass mailings, telemarketing calls, statement stuffers and
other similar communications directed to all the current customers of Buyer or
to the public, or newspaper, radio, or television advertisements of a general
nature or otherwise prevent Buyer from taking such actions as may be required to
comply with any applicable federal or state laws, rules, or regulations. The
foregoing restrictions notwithstanding, Buyer may continue to solicit Customers
of the Branch with whom Buyer has existing business relationships which are
normally established and maintained in offices other than the Branch, and Buyer
may continue to solicit such business relationships without restriction prior to
the Closing Date.
7.2. Regulatory Approvals.
--------------------
Buyer agrees to use its best efforts to obtain as soon as reasonably
practicable any regulatory approval required to consummate the transactions
contemplated by this Agreement. Buyer shall notify Seller promptly of any
significant development with respect to any regulatory application made under
this Section. Buyer also shall provide Seller with a copy of any regulatory
approval it receives under this Section, promptly upon its receipt thereof.
7.3. Confidentiality.
---------------
Buyer shall, and shall cause its Affiliates, directors, officers,
employees, and agents to, take all reasonable and appropriate steps to keep
confidential all information obtained or furnished to any of them with respect
to Seller and its business, operations, and financial condition, and any
information maintained by Buyer with respect to the Branch and/or to operations
at the Branch; provided, however, that any such information may be disclosed by
Buyer to the extent required by law, as determined in a written opinion of
counsel to Buyer (which counsel may be an employee of Buyer). In the event such
disclosure is required, Buyer shall provide Seller written notice of the
information to be disclosed, together with a copy of the written opinion
referred to in the immediately preceding sentence, as far in advance of such
disclosure as is practicable. At Seller's request, Buyer will use its best
efforts to obtain assurances that confidential treatment will be afforded to
such information and will disclose only such information as is necessary to
comply with its legal obligations as advised in such written opinion. Buyer
acknowledges that Seller will suffer irreparable harm as a result of a breach of
this Section and that, therefore, Seller will be entitled to injunctive and
other appropriate equitable relief in addition to damages as a result of a
breach or imminent breach of this Section. Buyer's obligations under this
Section 7.3 shall survive both the termination of this Agreement and the
Closing.
87
7.4. Change of Name, Etc.
--------------------
Immediately after the Closing, Buyer will (a) change the name on all
documents and facilities relating to the Branch to Buyer's name, (b) notify all
Customers as of the Closing Date of the consummation of the transactions
contemplated by this Agreement, and (c) provide all appropriate notices to the
FDIC and the OCC and any other appropriate regulatory authorities required from
Buyer as a result of the consummation of these transactions. As soon as
practicable and, in any event, no later than seven (7) calendar days after the
Closing Date, Buyer will issue new checks, draft forms, loan coupon books and
deposit slips reflecting its transit and routing number to Customers of the
Branch able to access accounts through either checks or drafts. Buyer shall use
its best efforts to encourage these customers to begin using these checks and
cease using checks bearing Seller's name.
7.5. Continued Operation of the Branches.
-----------------------------------
Subject to Buyer obtaining any necessary regulatory approval under
Section 7.2 of this Agreement, Buyer shall establish a branch at the present
location of the Branch and shall continue to operate the Branch after the
Closing for at least as long as necessary to comply with any branch closing
notice requirements. No notice with respect to any such closing shall be made
or given until after the Closing Date. In no event shall Seller be required to
participate in the closing of the Branch or in any notice to customers relating
to such closing.
7.6. Collateral for Government Deposits.
----------------------------------
Buyer shall assume Seller's responsibilities under any agreement
regarding the pledge of collateral with respect to any Deposit of a customer
that is a governmental entity or school district or make other arrangements
acceptable to such customer prior to the Closing Date. All such deposits are
specified in Schedule 7.6 hereto. Any collateral required to secure the
------------
Deposits of any such customer shall be pledged by Buyer no later than the
Closing Date.
ARTICLE VIII
EMPLOYEES OF THE BRANCHES
8.1. Hiring of Branch Employees. Buyer shall extend offers of employment
--------------------------
to branch employees on the payroll of the Branch on the Closing Date (the
"Transferred Employees"). Each offer of employment shall be effective as of the
Closing Date and shall provide a salary or hourly wage equal to that being paid
to such Transferred Employee by Seller as of the Closing Date, except that Buyer
may adjust such Transferred Employee's salary if necessary so that it is
comparable to the salaries of other employees of the Buyer in similar positions.
8.2. Employee Benefits.
-----------------
(a) Following the Closing, Buyer shall not have any liability or
obligation under any Benefit Plans or any other program or arrangement of Seller
or an ERISA Affiliate thereof under which any current or former employee of
Seller or any of its Affiliates has any right to any benefits. The Seller shall
reserve the right to settle the benefit obligations of the Retirement Plan in a
manner that it so chooses subject to the regulatory and statutory requirements
imposed upon the plans by the Internal Revenue Service (the "IRS") and
Department of Labor (the "DOL").
88
(b) Upon the Closing, the participation of Transferred Employees in
the Benefit Plans of the Seller shall cease in accordance with the terms of such
plans. The Seller shall have no further obligation to provide employee benefits
to the Transferred Employees.
(c) From and after the Closing Date, Buyer shall provide the
Transferred Employees with the employee benefits, if any, provided to employees
of Buyer and its Affiliates.
8.3. Training.
--------
Seller shall permit Buyer to train the Transferred Employees with
regard to Buyer's operations, policies and procedures before the Closing Date at
the Buyer's sole cost and expense. This training shall take place outside of
business hours and may, at Buyer's option, take place at the Branch.
ARTICLE IX
CLOSING
9.l Time and Place of Closing.
-------------------------
(a) Subject to the conditions to Closing set forth in Sections 9.3
and 9.4, the Closing shall take place on such date, mutually agreed upon by the
parties hereto after the conditions set forth in Section 9.3(a) and 9.4(a) have
been satisfied in full (the "Closing Date"); provided, however, that the Closing
shall occur no later than June 30, 2000. The Closing shall take place at the
offices of Seller, at 10 a.m. on the Closing Date, or at such other time and
place as may be mutually agreed upon by the parties. The Closing shall be
effective as of 2:00 p.m. (Eastern Time) on the Closing Date.
(b) Simultaneously with the occurrence of the Closing, Seller and
Buyer shall convert all other assets and liabilities from Seller's data
processing system to Buyer's data processing system, in accordance with the
procedures established pursuant to Section 2.9.
9.2. Closing Documents.
-----------------
On the Closing Date, the following actions shall be taken:
(a) Seller shall deliver to Buyer the following:
(i) the Xxxx of Sale in substantially the form of Exhibit 9.2A
attached hereto (the "Xxxx of Sale") and all other bills
of sale, assignments and other documents of transfer and
instruments (which documents and instruments shall be
satisfactory in form and substance to legal counsel of
Seller and Buyer) necessary to convey to Buyer all its
right, title and interest in and to the Assets hereunder;
(ii) the Assignment and Assumption Agreement in substantially
the form of Exhibit 9.2B attached hereto (the "Assignment
and Assumption Agreement");
(iii) a general warranty deed transferring title to the Real
Property from Seller to Buyer in form and content
reasonably acceptable to Buyer;
(iv) the Loans purchased by Buyer duly and properly endorsed to
Buyer by Seller,
89
together with all notes, guarantees, agreements and other
evidence thereof and all collateral and security interests
securing the Loans in the possession of Seller and all
necessary assignments, endorsements and other instruments
of conveyance as may be reasonably necessary under the
circumstances; provided that all such assignments,
endorsements and other instruments of conveyance shall be
without recourse as to collection to Seller;
(v) a certificate, signed by a duly authorized officer of
Seller, certifying that (A) the representations and
warranties of Seller in this Agreement are true in all
material respects as of the Closing Date and (B) the
covenants of Seller to be performed on or before the
Closing Date have been performed in all material respects;
(vi) copies of resolutions of Seller's Board of Directors or
other appropriate governing committee, certified by
Seller's secretary or assistant secretary, authorizing the
execution of this Agreement and the transactions
contemplated hereby, and a certificate of Seller's
secretary or assistant secretary as to the incumbency of
each officer of Seller executing this Agreement and all
instruments, certificates and documents required to be
executed and delivered by Seller at the Closing; and
(vii) updated Schedules to this Agreement.
(b) Buyer shall execute and deliver to Seller the following:
(i) the Assignment and Assumption Agreement;
(ii) such other instruments as may be necessary for Buyer to
validly acquire the Real Property;
(iii) a certificate, signed by a duly authorized officer of
Buyer, certifying that (A) the representations and
warranties of Buyer under this Agreement are true in all
material respects as of the Closing Date and (3) the
covenants of Buyer to be performed on or before the
Closing Date have been performed in all material respects;
and
(iv) copies of resolutions of Buyer's Board of Directors or
other appropriate governing committee, certified by
Buyer's secretary or assistant secretary, authorizing the
execution of this Agreement and the transactions
contemplated hereby, and a certificate of Buyer's
secretary or assistant secretary as to the incumbency of
each officer of Buyer executing this Agreement and all
instruments, certificates and documents required to be
executed and delivered by Buyer at the Closing; and
(v) a copy of Form 8594 completed pursuant to Section 3.4
hereof.
9.3. Buyer's Conditions to Closing.
-----------------------------
Unless waived in writing by Buyer in its sole discretion, Buyer's
obligations to purchase the Assets and assume the Liabilities shall be
contingent upon and subject to the fulfillment on or prior to the Closing of the
following conditions in all material respects:
90
(a) Regulatory Approvals. Buyer shall have received all regulatory
--------------------
approvals which are required by law or otherwise to consummate the transactions
contemplated by this Agreement, including without limitation the approval of the
OCC and any required approvals of the Federal Reserve Board or the FDIC, and any
required waiting period with respect to such regulatory approvals shall have
expired without the commencement of adverse proceedings by any governmental
authority with jurisdiction over the transactions contemplated by this
Agreement;
(b) Representations, Warranties and Covenants. Each of Seller's
-----------------------------------------
representations and warranties set forth in this Agreement shall be true and
correct in all material respects as of the Closing Date and all material
covenants to be performed by Seller on or before the Closing Date shall have
been performed or met in all material respects;
(c) Closing Documents. Seller shall have delivered to Buyer the
-----------------
documents set forth in Section 9.2(a); and
(d) Preliminary Payment. Buyer shall have received the Preliminary
-------------------
Payment as provided in Section 3.3(a).
(e) No Material Adverse Changes. There shall have been no material
---------------------------
adverse changes in the Assets or the Liabilities.
(f) Due Diligence. Buyer shall have completed the Buyer Due
-------------
Diligence as provided in paragraph 2.2 of this Agreement.
Buyer shall also have completed to its reasonable satisfaction
the additional due diligence review as provided in paragraph 2.3 of the
Agreement, which review shall be completed no later than forty-five (45) days
after execution of this Agreement.
9.4. Seller's Condition's to Closing.
-------------------------------
Unless waived in writing by Seller in its sole discretion, Seller's
obligation to sell the Assets and transfer the Liabilities to Buyer is
contingent upon and subject to the fulfillment of the following conditions in
all material respects:
(a) Board Approval. The Board of Directors of Seller, or an
--------------
authorized committee thereof, shall have approved the execution and delivery of
this Agreement by Seller and Seller's performance of its obligations
contemplated hereby;
(b) Regulatory Approvals. Buyer shall have received all regulatory
--------------------
approvals which are required by law or otherwise to consummate the transactions
contemplated by this Agreement, including without limitation the approval of the
OCC and any required approvals of the Federal Reserve Board or the FDIC, and any
required waiting period with respect to such regulatory approvals shall have
expired without the commencement of adverse proceedings by any governmental
authority with jurisdiction over the transactions contemplated by this
Agreement;
(c) Representations, Warranties and Covenants. Each of Buyer's
-----------------------------------------
representations and warranties set forth in this Agreement shall be true and
correct in all material respects as of the Closing Date and all material
covenants to be performed by Buyer on or before the Closing Date shall have been
performed in all material respects; and
91
(d) Closing Documents. Buyer shall have delivered to Seller the
-----------------
documents set forth in Section 9.2 (b).
(e) Closing of South Branch/Potomac Merger. The merger of South
--------------------------------------
Branch Valley Bancorp, Inc. and subsidiary Potomac Interim Bank, Inc. with and
into Potomac Valley Bank pursuant to an Agreement and Plan of Merger dated as of
July 16, 1999, shall have been consummated.
ARTICLE X
INDEMNIFICATION
10.1. Indemnification of Seller.
-------------------------
Subject to the limitations set forth in Section 10.4 hereof, Buyer
shall indemnify, defend, and hold harmless Seller and its Affiliates and each of
their respective officers, directors and employees from and against any and all
liability, damages, claims, suits, judgments, fines, costs, penalties, and
expenses (including attorneys' fees and disbursements) (together, "Damages")
suffered or incurred by Seller which arise out of or result from Buyer's
ownership of the Assets or failure after the Closing to perform, pay, discharge,
or satisfy any of the Liabilities in any material respect, to perform any
obligation under this Agreement, or which arise out of any breach by Buyer of
any representation or warranty of Buyer set forth in this Agreement.
10.2. Indemnification of Buyer.
------------------------
Subject to the limitations set forth in Section 10.4 hereof, Seller
shall indemnify, defend, and hold harmless Buyer and its Affiliates and each of
their respective officers, directors and employees from and against any and all
Damages suffered or incurred by Buyer which arise out of Seller's ownership of
the Assets or failure prior to the Closing to perform, pay, discharge, or
satisfy any of the Liabilities (to the extent required prior to the Closing) in
any material respect, to perform any obligation under this Agreement, or which
arise out of any breach by Seller of any representation or warranty of Seller
set forth in this Agreement.
l0.3. Notice.
------
Promptly after the service of process by any third person in any
litigation or proceeding, or the receipt of any claim or demand in respect of
which a party may have any claim for indemnification under this Agreement, or as
soon as reasonably practicable after such party shall have acquired notice of
any other matter with respect to which indemnity may be so sought, such party
will notify the indemnifying party thereof. The indemnifying party shall have
the right within ten (10) Banking Days of receipt of such notice to assume the
defense, settlement or compromise (as to settlements or compromise only with the
prior written consent of the indemnified party, which shall not be withheld
unreasonably) of any such claim, action, suit or proceeding at its own expense,
including the retention of counsel reasonably satisfactory to the indemnified
party, and the indemnified party shall cooperate with the indemnifying party as
provided in Section 10.5 below. In such event, the indemnified party shall have
the right, upon prompt written notice to the indemnifying party, to retain
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the indemnified party's own
expense. If the indemnifying party does not notify the indemnified party that it
will assume the defense, settlement or compromise of any such claim, action,
suit or proceeding within ten (10) Banking Days upon receipt of notice thereof,
the indemnified party shall have the full and sole right to defend, settle or
compromise such claim, action, suit or proceeding with the consent of the
indemnifying party.
92
10.4. Limitation on Indemnification.
-----------------------------
No indemnification shall be payable under Section 10.1 or Section
10.2 unless the amount of the Damages for which indemnification is being sought
or could be sought shall exceed, in the aggregate, $35,000, and then only to the
extent of such excess. No party hereto shall be entitled to indemnification to
the extent that Damages, singly or in the aggregate, shall exceed $1,500,000. No
party hereto shall be entitled to indemnification for Damages unless claim for
indemnification is made within two (2) years of the date of this Agreement;
provided, that this two year limitation shall not apply to claims relating to
breaches of the representations and warranties set forth in Sections 4.1 and
5.1.
10.5. Cooperation.
-----------
Seller shall give prompt notice to Buyer of any facts coming to its
attention that may give rise to a claim for indemnification. Seller shall
cooperate with Buyer in any investigation, or in the defense of any litigation
or proceeding that might give rise to a claim for indemnification or that would
give rise to a claim for indemnification if brought against Seller. Such
cooperation shall include providing witnesses, files, documents and records that
Seller is uniquely in a position to provide.
10.6 Exclusive Remedy.
----------------
The rights established by this Article X shall be the exclusive
remedy available to each party hereto in the event of a claim for Damages by
such party other than claims for fraud.
ARTICLE XI
TERMINATION
11.1. Termination by Either Party.
---------------------------
(a) This Agreement may be terminated prior to closing as follows:
(i) By either party, if the other party fails to cure any
material breach of any representation, warranty, or covenant within thirty (30)
calendar days after being notified in writing of the breach by the party
terminating this Agreement; or
(ii) By either party, upon the expiration of thirty (30)
calendar days after the FDIC, the Banking Commission or any other governmental
agency or regulatory authority issues a decision denying or refusing to grant
the approvals or consents required to be obtained pursuant to this Agreement,
unless within said 30-day period Seller and Buyer agree to submit an application
to or appeal the decision of the regulatory authority which has denied or
refused to grant said approval;
(iii) By either party, if the Closing does not occur on or
before June 30, 2000, provided that the party terminating this Agreement has
used its best efforts to perform its obligations hereunder; or
(iv) By both parties upon their mutual agreement in writing to
terminate this Agreement.
(b) In the event this Agreement is terminated, it shall be of no
further force or effect and the
93
parties shall be released from all further obligations hereunder except as
otherwise specified herein and except that the termination of this Agreement
under subsection (a)(i) above shall not absolve the breaching party from any
liability to the other party arising out of such breach.
ARTICLE XII
MISCELLANEOUS
12.1. Further Assurances.
------------------
(a) On and after the Closing Date, Seller agrees to give such
further reasonable assurances and to execute, acknowledge and deliver such bills
of sale, deeds, acknowledgments and other instruments of conveyance and transfer
as in Buyer's judgment are reasonably necessary and appropriate to vest
effectively in Buyer the full legal and equitable title to all the Assets and
Liabilities.
(b) On and after the Closing Date, Buyer shall execute, acknowledge
and deliver any documents or instruments as may be necessary and appropriate to
relieve and discharge Seller from its obligations with respect to the
Liabilities.
(c) Seller and Buyer shall cooperate fully with each other in
connection with any examination conducted by any tax authority subsequent to the
Closing Date by promptly providing to the other, upon written request,
information relating to the tax liability of any business operated by Seller or
Buyer with respect to the Branch.
12.2. Survival of Representations and Warranties.
------------------------------------------
Each and every one of Buyer's and Seller's representations and
warranties under this Agreement or contained in any certificate or instrument
delivered by either party at Closing shall survive for a period of two (2) years
from the Closing Date, except that the representations and warranties set forth
in Sections 4.1 and 5.1 shall survive indefinitely following the Closing Date.
12.3. Non-Solicitation of Business.
----------------------------
(a) For a period of eighteen (18) months after the Closing Date,
Seller will not specifically target and solicit customers of the Branch
utilizing any customer or mailing list which consists primarily of Customers of
the Branch; provided, however, these restrictions shall not restrict general
mass mailings, telemarketing calls, statement stuffers and other similar
communications directed to all the current customers of Seller or to the public,
or newspaper, radio, or television advertisements of a general nature or
otherwise prevent Seller from taking such actions as may be required to comply
with any applicable federal or state laws, rules, or regulations. The foregoing
restrictions notwithstanding, Seller may continue to solicit Customers of the
Branch with whom Seller has existing business relationships which are normally
established and maintained in offices other than the Branch, and Seller may
continue to solicit such business relationships without restriction after the
Closing Date.
(b) Each of Seller and Buyer acknowledges that the restrictions and
agreements contained in this Section 12.3 are reasonable and necessary to
protect the legitimate interests of the parties hereto, and that any violation
of this Section 12.3 by one party will cause substantial and irreparable harm to
the other party that would not be quantifiable and for which no adequate remedy
would exist at law and agrees that injunctive relief, in addition to all other
remedies, shall be available therefor.
94
(c) It is the intent and understanding of each party hereto that
if, in any action before any court or agency legally empowered to enforce this
Section 12.3, any term, restriction, covenant, or promise is found to be
unreasonable and for that reason unenforceable, then such term, restriction,
covenant, or promise shall not thereby be terminated but that it shall be deemed
modified to the extent necessary to make it enforceable by such court or agency
and, if it cannot be so modified, that it shall be deemed amended to delete
therefrom such provision or portion adjudicated to be invalid or unenforceable,
such modification or amendment in any event to apply only with respect to the
operation of this Section 12.3 in the particular jurisdiction in which such
adjudication is made.
12.4. Entire Agreement and Amendment.
------------------------------
This Agreement sets out the complete agreement of the parties with
respect to the matters discussed herein, and supersedes all prior agreements
between the parties, whether written or oral, with respect to such matters. No
provision of this Agreement may be amended or waived except as expressly stated
in writing and executed by both parties.
12.5. Dispute Resolution.
------------------
(a) Seller and Buyer each agree to submit all matters of
disagreement, dispute, or controversy between Seller and Buyer under this
Agreement to binding arbitration (except for matters to be resolved by the
Mediator concerning the Preliminary Closing Statement and the Final Closing
Statement pursuant to Section 3.3 hereof) before the American Arbitration
Association (the "AAA"). All arbitration proceedings shall be conducted by three
arbitrators in Charleston, West Virginia, under the rules of the AAA, except as
otherwise provided in this Section 12.5. The party submitting a matter to
arbitration shall include in the submission the name and address of the
arbitrator selected by it, and the non-submitting party shall submit the name
and address of the arbitrator selected by it within twenty (20) calendar days
after receipt of notice of the submission. The two arbitrators selected by
Seller and Buyer shall be instructed to appoint a third arbitrator as soon as
practicable. If they fail to do so within twenty (20) calendar days after the
appointment of the non-submitting party's arbitrator, the AAA may appoint the
third arbitrator and shall appoint the third arbitrator within thirty (30)
calendar days after the appointment of the non-submitting party's arbitrator.
(b) The fees and expenses of each arbitrator and all other costs
and expenses incurred in the arbitration, including reasonable attorneys' fees,
shall be borne as specified in the arbitrators' award.
(c) Notwithstanding subsection (a) of this Section 12.5 either
party shall be entitled to commence a suit at law for the purpose of (i)
obtaining appropriate equitable relief in the event of a violation, or imminent
violation, of Section 6.6 or 7.3 of this Agreement or (ii) enforcing the
indemnification obligation under Article X of this Agreement. Neither party
shall prejudice any right to seek arbitration of any dispute arising with
respect to Section 6.6 or 7.3 or Article X by commencing such a suit at law.
12.6. Counterparts.
------------
This Agreement may be executed in any number of counterparts, each
of which shall constitute an original, but all of which taken together shall
constitute one and the same instrument.
95
12.7. Severability.
------------
If any portion of this Agreement is declared by a court of
competent jurisdiction to be invalid or unenforceable, such declaration shall
not affect the validity of the remaining provisions.
12.8. Applicable Law.
--------------
This Agreement shall be governed by the laws of the State of West
Virginia, without regard to principles of conflicts of laws thereof, except to
the extent that the laws of the United States of America are applicable.
12.9. Exhibits and Schedules.
----------------------
All exhibits and schedules referred to herein shall constitute a
part of this Agreement.
12.10. Assignment.
----------
This Agreement is not assignable by either party without the prior
written consent of the other party.
12.11. Headings.
--------
The headings contained in this Agreement are inserted for
convenience only and shall not affect the meaning of this Agreement or any of
its provisions.
12.12. Notices.
-------
Any notice under this Agreement shall be made in writing and shall
be deemed received when either received or delivered in person, by facsimile
transmission, or by first class mail, postage prepaid, to the parties at the
address set forth below or at such other addresses as each party shall inform
the other in writing:
If to Seller to:
South Branch Valley National Bank
000 Xxxxx Xxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
ATTN: H. Xxxxxxx Xxxxx, III, President and CEO
with a copy to:
Xxxxxx X. Xxxxxx, Esq.
Xxxxxx Rice XxXxxxx Xxxxx & Love, PLLC
000 Xxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000-0000
Fax: (000) 000-0000
96
Phone: (000) 000-0000
If to Buyer to:
Citizens National Bank of Elkins
000-000 Xxxxx Xxxxxx
P. O. Xxx 0000
Xxxxxx, Xxxx Xxxxxxxx 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
ATTN: Xxxxxx X. Xxxxxxxxxx, President and CEO
with a copy to:
Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxx & Xxxxx, PLLC
1600 Laidley Tower (Zip 25301)
P. X. Xxx 000
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
12.13. Expenses.
--------
Unless specifically stated to the contrary in this Agreement, each
party shall assume and pay for the expenses it incurs with respect to the
purchase and sale of the Assets and assumption of the Liabilities under this
Agreement.
12.14. Public Announcements.
--------------------
Prior to making any press release relating to this Agreement or the
transactions contemplated hereby, Seller and Buyer shall agree with each other
as to the form and substance of such press release. Prior to making any other
public disclosures relating to this Agreement or the transactions contemplated
hereby, Seller and Buyer shall consult with each other as to the form and
substance of such disclosure and shall furnish a copy of the text of such
disclosure to the other party, provided, however, that nothing herein shall
prohibit either party from making any disclosure which its legal counsel
reasonably deems necessary to comply with applicable law.
12.15. No Third Party Beneficiary.
--------------------------
The parties agree that they are the sole intended beneficiaries of
this Agreement and that there are no intended third party beneficiaries of this
Agreement.
97
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed by its respective authorized representatives, as of the date first
above written.
SELLER
SOUTH BRANCH VALLEY NATIONAL BANK
[ SEAL ]
By: /s/ H. Xxxxxxx Xxxxx, III
-----------------------------------
H. Xxxxxxx Xxxxx, III
President and CEO
BUYER
CITIZENS NATIONAL BANK OF ELKINS
[ SEAL ]
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxxxx
President and CEO
00
XXXXX XX XXXX XXXXXXXX
XXXXXX XX XXXXX, to-wit:
I, _____________________________, a notary public in and for said
state and county, do hereby certify that H. Xxxxxxx Xxxxx, III, whose name is
signed to the above writing as President of South Branch Valley National Bank,
has this day acknowledged the same before me.
Given under my hand this _________day of December, 1999.
My commission expires ________________________________.
_________________________________
Notary Public
STATE OF WEST VIRGINIA
COUNTY OF ____________, to-wit:
I, _____________________________, a notary public in and for said
state and county, do hereby certify that Xxxxxx X. Xxxxxxxxxx, whose name is
signed to the above writing as President of Citizens National Bank of Elkins,
has this day acknowledged the same before me.
Given under my hand this _________day of December, 1999.
My commission expires ________________________________.
_________________________________
Notary Public
99
SOUTH BRANCH VALLEY BANCORP, INC.
DISCLOSURE SCHEDULE
PURCHASE AND ASSUMPTION AGREEMENT
BY AND BETWEEN
SOUTH BRANCH VALLEY NATIONAL BANK
AND
CITIZENS NATIONAL BANK OF ELKINS
This disclosure schedule (this "Disclosure Schedule") is being
furnished by South Branch Valley National Bank ("South Branch") to Citizens
National Bank of Elkins ("Citizens") in connection with the execution and
delivery of that certain Purchase and Assumption Agreement dated as of December
17, 1999 (the "Agreement"), by and between South Branch and Citizens. Unless the
context otherwise requires, all capitalized terms used in this Disclosure
Schedule shall have the respective meanings assigned to them in the Agreement.
No reference to or disclosure of any item or other matter in this
Disclosure Schedule shall be construed as an admission or indication that such
item or other matter is material or that such item or other matter is required
to be referred to or disclosed in this Disclosure Schedule.
This Disclosure Schedule and the information and disclosures contained
in this Disclosure Schedule are intended only to qualify and limit the
representations, warranties and covenants of South Branch contained in the
Agreement and shall not be deemed to expand in any way the scope or effect of
any of such representations, warranties and covenants.
100
List of Schedules and Exhibits
------------------------------
Schedules:
---------
Schedule A -- The Branch
Schedule B -- Fixed Assets
Schedule C -- The Loans
Schedule D -- Operation and Maintenance Contracts
Schedule E -- Real Property
Seller's Disclosure Schedules:
-----------------------------
Schedule 4.2 -- Actions Pending Against Seller - None
Schedule 4.3 -- Consents and Approvals - None
Schedule 4.5 -- Real Property Title Exceptions - None
Schedule 4.6 -- Fixed Assets Title Exceptions - None
Schedule 4.15(a) -- Environmental Matters - See attached
Schedule 7.6 -- Government Deposits - See attached
Exhibits:
--------
Exhibit 9.2A -- Form of Xxxx of Sale
Exhibit 9.2B -- Form of Assignment and Assumption Agreement
101
Schedule A
Petersburg Branch of South Branch Valley National Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
000
Xxxxxxxx X
XXXXX XXXXXX XXXXXX BANCORP, INC.
SOUTH BRANCH VALLEY NATIONAL BANK, PETERSBURG BRANCH
GRANT COUNTY
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Owned
Fixed Assets:
Net Book Value (land, building, FF&E) $ 242,179.03
Facilities:
Type: Stand Alone Brick
Night deposit/ATM/Drive-thru/Safe Deposit Y/N/Y/N
See detail attached
Buyer and Seller will mutually agree before Closing as to which of the listed
Fixed Assets will be purchased by Buyer. Buyer and Seller acknowledge that no
computer software is being transferred hereunder.
103
Schedule B (cont.)
SOUTH BRANCH VALLEY NATIONAL BANK - PETERSBURG BRANCH
FIXED ASSET BOOK VALUES AT NOVEMBER 30, 1999
Acquisition Accumulated
Date Cost Depreciation NBV
---------------------------------------------------------------------
2 lots Virginia Avenue 11/15/95 $ 35,000.00 $ - $ 35,000.00
Building, Virginia Avenue 11/15/95 200,309.86 20,239.65 180,070.21
Carpeting, building 9/12/96 2,408.74 782.82 1,625.92
Pentium II server 3/10/99 4,081.00 612.15 3,468.85
Novell tape drive 8/25/99 2,122.54 126.35 1,996.19
4 desks 11/15/95 1,015.00 828.91 186.09
Chairs and credenzas 11/15/95 722.00 589.63 132.37
Miscellaneous furniture 11/15/95 453.00 369.95 83.05
Diebold safe 11/15/95 1,598.00 652.51 945.49
Diebold security system 11/15/95 705.00 575.75 129.25
Branch sign 12/20/95 2,200.00 861.66 1,338.34
Internet/Intranetware between loc. 8/11/97 3,452.54 1,611.18 1,841.36
Kitchen appliances 11/15/95 432.00 432.00 -
Pictures 11/15/95 486.00 394.59 91.41
Typewriters and calculators 11/15/95 591.00 591.00 -
3 Sharp 3520 teller machines 11/15/95 3,861.32 3,153.39 707.93
9 teller cabinets 11/15/95 571.00 463.60 107.40
Laserjet 4 plus printer 11/27/95 2,626.84 2,101.47 525.37
4 dr. lateral filing cabinet 2/23/96 2,242.70 841.01 1,401.69
Phone system 2/07/96 2,320.88 1,665.38 655.50
EZ teller machines 9/10/97 15,386.54 6,923.94 8,462.60
EZ teller software 9/10/97 6,200.00 2,789.99 3,410.01
----------- ---------- -----------
$288,785.96 $46,606.93 $242,179.03
=================================================
000
Xxxxxxxx X
XXXXX XXXXXX XXXXXX BANCORP, INC.
SOUTH BRANCH VALLEY NATIONAL BANK, PETERSBURG BRANCH
LOAN DISTRIBUTION SCHEDULE AS OF NOVEMBER 30, 1999
CURRENT % of WEIGHTED
LOAN TYPE BALANCE TOTAL RATE
--------- ------- ----- ----
Installment $4,299,943 68.94% 9.33%
Credit Line 163,514 2.62% 7.45%
Business 251,097 4.03% 8.97%
Variable rate mortgages 1,522,388 24.41% 7.43%
--------------------------------------
TOTAL LOANS $6,236,942 100.00% 8.80%
======================================
105
Schedule D
SOUTH BRANCH VALLEY NATIONAL BANK-PETERSBURG BRANCH
PACKARD BUSINESS SYSTEMS (Teller machines) maintenance from 7/15/99 thru
7/15/00; annual cost $1,886.80
GRANT COUNTY OFFICE EMERGENCY SERVICES (alarm monitoring) 1/1/99 thru 12/31/99;
annual cost $300.00
106
Schedule E
Book 192 Page 647
Last ____________________ DEED
NO. 42006
---------------------
THIS DEED, made and entered into this 14/th/ day of NOVEMBER 1995, by and
between BLUE RIDGE BANK, a West Virginia corporation, Grantor and party of the
first part, and SOUTH BRANCH VALLEY NATIONAL BANK, a national association,
Grantee and party of the second part.
WITNESSETH: That for and in consideration of the sum of Ten Dollars
($10.00), cash in hand paid, receipt of which is hereby acknowledged, and other
good and valuable consideration, receipt of which is also hereby acknowledged,
the party of the first part does hereby grant, bargain, sell and convey unto the
party of the second part, with covenants of general warranty and against all
liens and encumbrances the following described parcel of real estate together
with all rights, privileges, improvements, rights-of-way and appurtenances
thereunto belonging or in anywise appertaining, situate in Xxxxxx District,
Grant County, West Virginia and more particularly described as follows:
All that certain real estate being identified on the Land
Books of said County as "two lots, Virginia Avenue, Service
Station, Map 4, Parcel 118." The Real estate is further
identified by a plat of survey recorded along with and made a
part of corrective deed from Xxxxx X. Xxxx, et ux., to General
Telephone Company of the Southeast, by deed dated September 5,
1975, and of record in the Grant County Clerk's Office in Deed
Book 111, at Page 313, said plat being recorded at pages 321 and
328. On said plat, the real estate herein described fronts on
Virginia Avenue 156.13 feet; fronts on Grove Street 94.73 feet;
joins General Telephone Company 152.32 feet; and Xxxx Xxxxx and
Xxxxxxxxx Xxxxxx 100 feet.
AND BEING that same parcel of real estate as was conveyed from Resolution
Trust Corporation, as Receiver of Shenandoah Federal Savings Association, to
Blue Ridge Bank, a West Virginia corporation, by deed dated the 21/st/ day of
June 1995, of record in the Office of the Clerk of the County Commission of
Grant County, West Virginia, in Deed Book 190, at page 625.
107
Schedule 4.15 (a)
[SEAL]
Office of Environmental Remediation
000 Xxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Telephone Number 000-000-0000
Fax Number 000-000-0000
West Virginia Division of Environmental Protection
--------------------------------------------------------------------------------
Xxxxx X. Xxxxxxxxx Xxxxxxx X. Xxxxx
Governor Director
April 5, 1999
City Holding Company
X.X. Xxx 0000
Xxxxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Call
Re: Review of Request for No Further Action
Blue Ridge Bank 000 Xxxxxxxx Xxx., Xxxxxxxxxx, XX
Leak No. 95-105 / XX.XX.Xx. 0000000
Dear Mr. Call:
A review of the reports submitted by your company have been reviewed along
with other file information. In addition we have received documentation of the
abandonment of the monitoring xxxxx associated with your site. Based on the
information which you have submitted the Leaking Underground Storage Tank
Section of the Office of Environmental Remediation is requiring "No Further
Action at This Time" for the above referenced site. Should you have any
questions regarding this matter please contact Xx. Xxxxxxx Xxxxxxx at (304) 465-
1911.
Sincerely,
Xxxxxxx Xxxxxxx, Geologist
Office of Environmental Remediation
cc: Xxx Xxxxxx (WVDEP)
Charleston file No. 95-105
OFFICE OF ENVIROMENTAL REMEDIATION
TELEPHONE: (000) 000-0000 FAX: (000) 000-0000 TDD: 0-000-000-0000
108
Schedule 7.6
---------------------------------------------------------------------
---------------------------------------------------------------------
Petersburg Branch Government Deposits
---------------------------------------------------------------------
Name Balance as of 11/30/99
---------------------------------------------------------------------
City of Petersburg $ 15,591.94
---------------------------------------------------------------------
Grant County Board of Education $ 26,792.08
---------------------------------------------------------------------
Woodland Terrace Apartments $223,293.44
---------------------------------------------------------------------
Total $265,677.46
---------------------------------------------------------------------
109
Exhibit 9.2A
PURCHASE AND ASSUMPTION AGREEMENT
Between
SOUTH BRANCH VALLEY NATIONAL BANK
and
CITIZENS NATIONAL BANK OF XXXXXX
XXXX OF SALE AND ASSIGNMENT OF LOANS
THIS XXXX OF SALE AND ASSIGNMENT OF LOANS is dated this _____ day of
_________________, 1999, by South Branch Valley National Bank, a national
banking association ("Seller").
W I T N E S S E T H:
WHEREAS, Seller and Citizens National Bank of Xxxxxx, a national
banking association, ("Buyer") have entered into a Purchase and Assumption
Agreement dated as of , 1999, (the
"Agreement") which provides for the sale by Seller to Buyer of certain personal
property and loans related to certain of Seller's branch offices (the "Branch"),
all as set forth in the Agreement;
NOW, THEREFORE, Seller, for good and valuable consideration, receipt
of which is hereby acknowledged, does hereby grant, bargain, sell, assign, set
over, convey and transfer to Buyer all of its right, title and interest in and
to the following assets (the "Assets"):
1. All furniture, fixtures and tangible personal property located in the
Branch, except for:
a. any rights to the name "South Branch Valley National Bank" and any
of Seller's corporate logos, trademarks, trade names, signs, paper
stock, forms and other supplies containing any such logos,
trademarks or trade names; and
b. the assets listed on Exhibit 1(b) hereto.
2. All of the Loans maintained, serviced and listed in Seller's general
ledger as loans of the Branch (except for those Loans that Buyer
rejects in accordance with the provisions of Section 2.2 of the
Agreement), a list of such specific loans to be attached hereto on the
date of the Final Closing Statement to be delivered by Seller in
accordance with Section 3.3(b) of the Agreement (the "Loans");
3. All of Seller's Records (as defined in Section 2.4(a) of the
Agreement).
110
Seller, for itself and its successors and assigns, does hereby
covenant and agree to and with Buyer and its successors and assigns that it (i)
is seized of, and has the right to convey to Buyer, such title to the Assets as
is provided in the Agreement, (ii) will warrant and defend said title to the
Assets in the manner provided in the Agreement, and (iii) shall, from time to
time, at the request of Buyer, execute, acknowledge and deliver to Buyer any and
all further instruments, documents, endorsements, assignments, information,
materials and other papers that may be reasonably required to transfer the
Assets to Buyer, to enable Buyer to xxxx, collect, service and administer the
Loans and to give full force and effect to the full intent and purposes of this
Xxxx of Sale.
IN WITNESS WHEREOF, Seller has caused this Xxxx of Sale to be duly
executed by its duly authorized officers and its corporate seal to be affixed
hereto, all as of the day and year first above written.
_________________________________
By: ___________________________
Its: ___________________________
[Corporate Seal]
ATTEST:
________________________
Secretary
111
Exhibit 9.2BA
PURCHASE AND ASSUMPTION AGREEMENT
Between
SOUTH BRANCH VALLEY NATIONAL BANK
and
CITIZENS NATIONAL BANK OF XXXXXX
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT is entered into this _____
day of _______________, 1999, by and between South Branch Valley National Bank,
a national banking association ("Seller"), and Citizens National Bank of Xxxxxx,
a national banking association ("Buyer").
W I T N E S S E T H:
WHEREAS, Seller and Buyer have entered into a Purchase and Assumption
Agreement dated as of ______________, 1999 (the "Agreement"), which provides for
the assignment by Seller of all of its rights and interests in and to certain
leases, contracts, deposit accounts and other liabilities related to Seller's
branch offices as more specifically described in the Agreement (the "Branch"),
and the assumption by Buyer of all of Seller's liabilities and obligations
thereunder, all as set forth in the Agreement;
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, receipt of which is hereby acknowledged by Seller
and Buyer, Seller hereby assigns, transfers and sets over to Buyer all of
Seller's rights and interest to, and Buyer does hereby assume all of Seller's
liabilities and obligations in connection with, the following assets (the
"Assets");
1. All equipment leases for equipment located at the Branch (the
"Equipment Leases") and operation and maintenance contracts relating to the
fixed assets at the Branch;
2. All deposit accounts located at the Branch (the "Deposit
Liabilities");
3. Safe deposit box contracts or leases; and
4. Seller's duties, obligations and responsibilities with respect to
the Retirement Plans (as defined in the Agreement), except for
those Retirement Plans not included in the Deposit Liabilities.
This Assignment and Assumption Agreement shall be binding upon, and
shall inure to the benefit of, Seller, Buyer, and each of their successors and
assigns and shall be subject to the terms and conditions of the Agreement. In
the event of a conflict between any of the terms and provisions hereof and the
Agreement, the Agreement shall be deemed to control.
112
This Assignment and Assumption Agreement, and the rights and
obligations of the parties hereunder, shall be governed by and construed in
accordance with the laws of the State of West Virginia.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption Agreement to be executed by their duly authorized officers and their
corporate seals to be affixed hereto, all as of the day and year first above
written.
_________________________________
By: ___________________________
Its: ___________________________
[ Corporate Seal]
ATTEST:
________________________
Secretary
_________________________________
By: ___________________________
Its: ___________________________
[ Corporate Seal]
ATTEST:
________________________
Secretary
113
